person of any treason, felony, or infamous crime as hereinbefore defined, compels or induces any person to execute, make, accept, indorse, alter or destroy the whole or any part of any valuable security, or to write, impress or affix his name, or the name of any other person, or of any company, firm or co-partnership, or the seal of any body corporate, company or society, upon or to any paper or parchment, in order that the same may be afterwards made or converted into or used or dealt with as a valuable security, is guilty of felony, and shall be liable to be imprisoned in the Penitentiary for life, or for any term not less than two years, or to be imprisoned in any other gaol or place of confinement for any term less than two years, with or without hard labour, and with or without solitary confinement.-24-25 Vict., ch. 96, sect. 48, Imp.

As to requiring recognizances and sureties for keeping the peace in felonies under this Act, see post, sect. 122. As to solitary confinement, see sect. 94, of the Procedure Act of 1869.

On this clause, Greaves says: "This clause is new. It will meet all such cases as Reg. vs. Phipoe, 2 Leach, 673, and R. vs. Edwards, 6 C. & P. 521, where persons by violence to the person or by threats of accusation of crimes, induce others to execute deeds, bills of exchange or other securities.

GENERAL CLAUSE ON THREATS, MENACES, ETC., ETC.

Sect. 48.-It shall be immaterial whether the menaces or threats hereinbefore mentioned be of violence, injury or accusation to be caused or made by the offender or by any other person.-24-25 Vict., ch. 96, sect. 49, Imp.

This clause is new, says Greaves; it is intended to meet cases where a letter may be sent by one person

and may contain menaces of injury by another, and to remove the doubts occasioned by Rex. vs. Pickford, 4 C. & P. 227. In Reg. vs. Smith, 1 Den. 510, the threat by a person writing a letter of an injury to be made by a third person (was held within the Statute, before this clause. Of course, now, this is clear law, whatever doubts may have existed heretofore.

BURGLARY.

GENERAL REMARKS.

Burglary, or nocturnal housebreaking, burgi latrocinium, which by our ancient law, was called hamesecken, has always been looked upon as a very heinous offence. For it always tends to occasion a frightful alarm, and often leads by natural consequence to the crime of murder itself. Its malignity also is strongly illustrated by considering how particular and tender a regard is paid by the laws of England to the immunity of a man's house, which it styles its castle, and will never suffer to be violated with impunity; agreeing herein with the sentiments of Ancient Rome, as expressed in the words of Tully (Pro Domo, 41) "quid enim sanctius, quid omni religione munitius, quam domus uniuscujusque civium ?" For this reason no outward doors can, in general, be broken open to execute any civil process, though, in criminal cases, the public safety supersedes the private. Hence, also, in part arises the animadversion of the law upon eavesdroppers, nuisancers, and incendiaries; and to this principle, it must be assigned, that a man may assemble people together lawfully, (at least if they do not exceed eleven) without danger of raising a riot, rout or unlawful assembly, in order to protect and defend his house, which he is not permitted to do in any other case. Stephen's Comment, Vol. 4, 104; Blackst. Comment, Vol. 4, 223.

Burglary is a breaking and entering the mansion-house

of another in the night, with intent to commit some felony within the same, whether such felonious intent be executed or not.-2 Russell, 1; Chitty, 1101. In which definition there are four things to be considered, the time, the place, the manner, and the intent.

The time. The time must be by night and not by day, for in the day time there is no burglary. As to what is reckoned night and what day for this purpose, anciently the day was accounted to begin only at sunrising, and to end immediately upon sunset; but the better opinion afterwards was that if there were daylight or crepusculum enough, begun or left, to discern a man's face withal, it was no burglary. But this did not extend to moonlight, for then many midnight burglaries would have gone unpunished; and besides, the malignity of the offence does not so properly arise from its being done in the dark, as at the dead of night, when all creation is at rest. But the doctrines of the common law on this subject are no longer of practical importance, as it is enacted by 32-33 Vict., ch. 21, sect. 1, that for the purposes of that Act, and in reference to the crime now under consideration, "the night shall be deemed to commence at nine of the clock in the evening of each day, and to conclude at six of the clock in the morning of the next succeeding day, and the day shall include the remainder of the twenty-four hours." 4 Blackst. 224; 4 Steph. Com. 105; 2 Russell, 39. The breaking and entering must both be committed in the night-time; if the breaking be in the day, and the entering in the night, or vice versa, it is no burglary.-1 Hale, 551. But the breaking and entering need not be both done in the same night for if thieves break a hole in a house one night, with intent to enter another night and commit felony and come accordingly another night and commit a felony,

seems to be burglary, for the breaking and entering were both noctanter, though not the same night.-2 Russell, 39. The breaking on Friday night with intent to enter at a future time, and the entering on the Sunday night constitute burglary.-R. vs. Smith, Russ. & Ry. 417. And then, the burglary is supposed to have taken place on the night of the entry, and is to be charged as such. -1 Hale, 551. In Jordan's case, 7 C. & P. 432, it was held that where the breaking is on one night and the entry on another, a party present at the breaking, but absent at the entry, is a principal.

The place. The breaking and entering must take place in a mansion or dwelling-house to constitute burglary. At the common law, Lord Hale says that a church may be the subject of burglary, 1 Hale, 559, on the ground, according to Lord Coke, that a church is the mansion house of God, though Hawkins, 1 vol. 133, does not approve of that nicety, as he calls it, and thinks that burglary in a church seems to be taken as a distinct burglary from that in a house. However, this offence is now provided for by sections 49 and 56 of the Larceny Act.

What is a dwelling house? From all the cases, it appears that it must be a place of actual residence. Thus a house under repairs, in which no one lives, though the owner's property is deposited there, is not a place in which burglary can be committed, R. vs. Lyons, 1 Leach, 185 in this case, the proprietor of the house, nor any of his family, nor any person whatever had yet occupied the house.

In Fuller's case, 1 Leach, note, loc cit., the defendant was charged of a burglary in the dwelling-house of Henry Holland. The house was new built, and nearly finished: a workman who was constantly employed by Holland